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Friday, 15 November 2013

Inexperienced litigation and relitigation: a couple of recent articles

A couple of good pieces of relevance to patent litigation are now available online to subscribers to the Journal of Intellectual Property Law & Practice (JIPLP), published monthly by Oxford University Press; short term access to them can also be purchased by non-subscribers. They are:

Darren Smyth (UK and European Patent Attorney, a partner at EIP and head of the EIP Elements practice group), "Patent law decisions from Supreme Courts: how can non-specialist judges decide this field of law?". According to the abstract

"This article considers recent patent decisions from the Supreme Courts of the United States of America, India and the United Kingdom, and identifies the common theme that they display surprising lack of appreciation of basic tenets of patent law or, in some cases, of the practical realities of the patent system. The issue appears to be general in nature, irrespective of jurisdiction, and inherent to systems where superior courts are generalist in nature and lack patent specialists.

It is then questioned whether judges who have not trained in this field can plausibly be entrusted with guiding the development of the jurisprudence of patent law. It is proposed that superior courts should be supplemented with judges having patent experience".

Professor Eddy D. Ventose, "Clarifying the law relating to double jeopardy in patent litigation". This is a Current Intelligence note on Resolution Chemicals Ltd v H. Lundbeck A/S [2013] EWCA Civ 924, Court of Appeal, England and Wales. In short:

"The Court of Appeal of England and Wales has simplified the test relating to privity of interest, enabling litigants to know the circumstances in which a party will be prevented from re-litigating a matter".

1 comment:

There is a counter-argument to having specialist patent courts. Patent case law will become separated from wider general issues in such a system. The law must always be judged from the perspective of how it is serving the purpose of what it is there for. Generalist judges will be more able to factor that in. There is no reason experts cannot be provided to assist generalist judges as needed. That is a better solution.

Proceedings Before the European Patent Office: a Practical Guide to Success in Opposition and Appeal, by Marcus O. Müller and Cees A.M. M...

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